While browsing through our collection of Louis D. Brandeis papers, I stumbled across a remarkable letter written by Brandeis’ fellow justice Benjamin Nathan Cardozo. Since there does not appear to be any published collections of Cardozo’s letters, I decided to post it. While not historically or legally significant, I found the letter interesting for a couple reasons. Cardozo has always looked so stern in all of the photographs I have seen of him, so it was a pleasant surprise to see how witty and playful it was. But at the same time, it is a rather sad letter. Written in July 1935, just a few weeks after suffering a heart attack, he writes of his recovery and his frustration with the various doctors and nurses attending him. He would recover enough to return to court the next term, but this was the beginning of the end. He never regained his full strength and he would die from a stroke three years later the age of 68.
I am providing a transcript of the letter below, along with a couple footnotes. Below that are the scans of the 4 pages of the letter for those who want to read the original. Unlike Brandeis, Cardozo’s penmanship is very clear and easy to decipher, although there are a couple places where I had to do some guesswork.
July 24, 1935
Dear Justice Brandeis,
It is good to hear from you and to learn of your well-being. You have been often in my thoughts, but I have put off writing to you till I could send a final report as to my health which hasn’t been 100% as it should be.
The doctors found me in poor shape when I came here from Washington, and before I knew what they were up to, they had put me to bed with a day nurse and a night one and all sorts of unconstitutional restraints upon fundamental liberties. Their tyranny proved to be beneficial, for I have made steady progress toward recovery. The nurses – praise be to God – have now departed. I feel much as the French must have felt upon the fall of the Bastille. A good many arbitrary and unconstitutional restraints still vex me: up to date, I have not been allowed beyond the porch, and am put to bed like your grandchildren at supper time – very likely they sit up later. Even so, the stream of liberty is widening.
Your letter gives me welcome hints of books worth reading. I have before me now “The Legacy of Greece.” My race consciousness was disturbed when I looked over the titles of the series and observed that I had not yet read “The Legacy of Israel.” What you write of it will move me to repair that omission. I read Dr. Kaplan’s book  last summer, but Dr. Levinthal’s  is in my library at Washington; I neglected to bring it with me. When I consider my leisure, I am chagrined that I haven’t read more than I have. It is astonishing how doctors and nurses make inroads on one’s time, so that the day passes with nothing done. And then the “certs” we always have with us.
Thanks for your letter and cordial greetings to Mrs. Brandeis, your daughter and the other members of the Chatham household.
 Edited by Richard Winn Livingstone, Clarendon Press, 1921.
 Edited by Edwin Robert Bevan, Clarendon Press, 1927.
 My colleague Kurt Metzmeier has speculated that is Judaism as a Civilization by Mordecai Menahem Kaplan.
 I’m assuming this is The Jewish Law of Agency by Israel Herbert Levinthal. We have Brandeis’ copy of this book in our library which, apparently was given to him by Levinthal himself.
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The Journal of Supreme Court History can usually be counted to offer some new information on John Marshall Harlan and Louis D. Brandeis, and their latest issue (volume 39, number 1) does not disappoint in that regard. The first article in the issue is titled “Plessy v. Ferguson: the Effects of Lawyering on a Challenge to Jim Crow” and it is by Seton Hall history professor Williamjames Hull Hoffer. Harlan doesn’t actually figure much in the article, but nevertheless it is a fascinating look at the events that lead up to the case and the legal arguments that were used before the Supreme Court.
Brandeis is name-checked in two articles that are not specifically about him. The first, “The Justice Who Changed His Mind: Oliver Wendell Holmes, Jr. and the Story behind Abrams vs. United States” is by Thomas Healy who is also from Seton Hall. Healy discusses the evolution of Holmes’ views on free speech and the behind the scenes efforts of friends like Harold Laski and Learned Hand to change his mind . He makes a strong argument but I suspect that he gives short shift to Brandeis’ influence, which is hard to quantify. There is plenty of documentary evidence (letters etc.) of the Hand/Laski campaign and Healy makes good use of it. Since Brandeis saw Holmes nearly everyday during the Supreme Court’s terms (they would walk home together at the end of each day) there was no need to write each other. It looks to me that Brandeis was at first content to follow Holmes’ lead on First Amendment cases but then as his thinking on the subject changed, he was able to pull Holmes along in his wake. But without any written evidence that assertion would be difficult to prove.
Brandeis’ presence is even fainter in the third article, “Felix Frankfurter and his Proteges: Re-examining the ‘Happy Hot Dogs’” by Sujit Raman. Raman discusses Frankfurter’s cultivation of Harvard Law School’s brightest students into his inner circle and then into various government positions, such as clerkships for Brandeis and Holmes. Many of his former clerks made no secret about how much they were influenced their time with Brandeis, but they were just as influenced by Frankfurter and his placement of them in key positions influenced the federal government for many years, particularly during the New Deal.
And finally, an article from the latest issue of the Notre Dame Law Review. I have mentioned David Bernstein before. He has been writing a lot about the early 20th century Progressives, and how he feels they were anti-individual rights. His latest article is about Brandeis again and is titled “From Progressivism to Modern Liberalism: Louis D. Brandeis as a Transitional Figure in Constitutional Law” (volume 89, number 5 of the Notre Dame Law Review, pp. 2029-2050, also available on SSRN.) In it, he outlines what he views as Brandeis’ evolution as a Holmes-style Progressive to something of a bridge to the “mid-century legal liberals.” (Interestingly, he also credits Brandeis with shaping Holmes’ views on free speech. I wonder if he will still feel that after reading Healy’s article.) Well written and a thought-provoking read, this article provides more ammunition in Bernstein’s campaign against early 20th century Progressivism.
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While rooting around in our collection of Harlan papers, I found a number of items that had been misfiled. Presumably they had been put on display many years ago and then just thrown back in a random box. The most interesting item in the set was a November 27, 1883 letter to Harlan from Frederick Douglass in regards to his recent dissent in the Civil Rights Cases. I have always been interested in Douglass so finding the letter was real thrill. A cursory search on the Internet did not reveal any references to the letter, so I decided to go ahead and post it.
While it may be stretching things a bit to call the two men friends, they were certainly acquaintances and admirers of each other. They first met in 1872 while on the campaign trail for Rutherford B. Hayes. At their first meeting they were seated next to each other at a dinner table — a circumstance Harlan always related with pride, even when political opponents tried to use it against him in his political campaigns. They heard each other speak on the campaign trail, and Harlan said later that Douglass “had no equal as a public speaker. He would have made a great Senator.” Their paths crossed a number of times after that, and when Douglass died, Harlan attended his funeral.
The Civil Rights Cases is a name given to five cases that were filed in response to violations of the Civil Rights Act of 1875. Even though the cases were filed separately, the Supreme Court lumped them together and in a 8-1 decision held that the Civil Rights Act was unconstitutional — a decision that helped pave the way for segregation and Jim Crow laws. Like he would be in the later Plessy v. Ferguson decision, Harlan was the Court’s sole dissenter, and his dissent made headlines across the country. While Douglass was, of course, appalled by the court’s decision, he also appreciated Harlan’s stance on the issue and made a number of public pronouncements to that effect. But here in this letter, one can see Douglass’ views as privately expressed from one individual to another:
Washington D.C. Nov. 27, 1883
Honorable John M. Harlan
Your exalted position on the Bench of the Supreme Court of the United States, and the freedom from the influence of praise or blame implied in that position has made me hesitate to express to you by letter the grateful feeling with which I have read your dissenting opinion from your Brothers in respect of their decision declaring the Civil Rights Bill unconstitutional and void, though I have not been slow or silent about expressing my feelings to the public about that opinion. What I have said to the public about that paper I now take the liberty (I hope not unwarrantable) to say to you by letter, and that is, I have read it with boundless satisfaction and hold it to be a triumphant vindication and justification of your dissent from the view taken of the Civil Rights Bill by your Brother Justices. It seems to me to be absolutely unanswerable and unassailable by any fair argument at any point for there is not a single weak point in it. You had an important and in some respects a difficult and delicate work to do, and you have done it with amazing ability skill and effect. It should be scattered like the leaves of Autumn over the whole country, and be seen, read and pondered upon by every citizen of the country and if I had means I would cause it to be published in every newspaper and magazine in the land. The Bible tells us that one shall chase a thousand and two put ten thousand to flight. However this may be in respect to physical combat, in the moral & intellectual field this has proved true a thousand times over, and never more true than in the present instance. I am glad sir, that in this day of compromise and concession where it is so much easier to drift with the current, to sacrifice conviction for the sake of peace, that you have been able to adhere to your convictions and thus save your soul. When self respect is lost the soul is lost. I have nothing better to say of your Brothers on the Supreme Bench, though I am amazed and distressed by what they have done. How they could at this day and in view of the past commit themselves and the country to such a surrender of National dignity and duty, I am unable to explain. I have read what they have said, and find no solid ground in it. Superficial and [???], smooth and logical within the narrow circumference beyond which they do not venture, that is all. I took my pen only to assure you of my unalloyed satisfaction with your opinion and my gratitude and admiration. I wish to assure you if you are alone on the Bench, you are not alone in the country. I hope you have seen the powerful speech made in Lincoln Hall by Col. R. G. Ingersoll. It is now in pamphlet form and will be widely circulated. There were speeches made on the same occasion by Rev. Doctor Rankin and Judge Shellabarger which ought to go out to the country. Excuse me for taking up so much of your time. I have sent you this not because you need the utterance – but because it was a need of my own.
I am, dear and honored sir,
Yours truly and gratefully
Update 2/24/2014: I figured where in the collection the letter is supposed to be placed — right after letters by Ingersoll and Rutherford B. Hayes. On the other side of the letter is an undated page from a nineteenth century newspaper called The American Reformer. On the page is a column written by Douglass about the decision by the Court. I’m attaching a pdf copy of the article for those who want to read more of what Douglass had to say. And for those who don’t want to download the article but want to see what he had to say about Harlan, here are the two relevant excerpts:
[Harlan] has felt himself called upon to isolate himself from his brothers on the Supreme Bench, and to place himself before the country as the true expounder of the Constitution as amended, and of the duty of the National Government to protect and defend the rights of citizens against any infringement of their liberty. The opinion which he has given to the country, as to the constitutionality of the Civil Rights Bill, places his name among the ablest jurists who have occupied the Supreme Court. No utterance from that Bench, since the celebrated and splendid opinion given by Judge Curtis against Judge Taney’s infamous Dred Scott decision, has equaled this opinion in ability, thoroughness, comprehensiveness and conclusive reasoning. Compared with it the decision of the eight judges was an egg shell to a cannon ball. We are told in Scripture that one shall chase a thousand, but one opinion like this could put to flight ten thousand of such decisions as the thin, gaunt and hungry one which denies the constitutionality of the Civil Rights Bill, and the duty of the Federal Government to protect the rights and liberties of its own citizens. No man, unless blinded by passion, prejudice, or selfishness, can read this opinion without respect and admiration for the man behind it. Where the decision of the Court is narrow, superficial and technical, the opinion of Judge Harlan is broad and generous, and grapples with substance rather than shadow, with things as they are rather than with abstractions…
As to Justice M. Harlan, no man in America at this moment occupies a more enviable position. His attitude is one of marked moral sublimity. The marvel is that, born in a slave State, as he was, and accustomed to see the colored man degraded, oppressed and enslaved, and the white man exalted; surrounded by the peculiar moral vapor inseparable from the slave system, he should so clearly comprehend the lessons of the late war and the principles of reconstruction, and, above all, that in these easy going days he should find himself possessed of the courage to resist the temptation to go with the multitude. He has chosen to discharge a difficult and delicate duty, and he has done it with great fidelity, skill and effect. In other days, when Garrison, Phillips, Sumner, Wilson and others spoke, wrote and moved among men, Old Massachusetts did not leave to Kentucky the honor of supplying the Supreme Bench with a moral hero. That State then spoke through the cultivated and legal mind of Judge Curtis. Happily for us, however, Kentucky has not only supplied the needed strength and courage to stem the current of pro-slavery reaction, but she has also supplied in Justice Harlan patience, wisdom, industry and legal ability, as well as heroic courage.
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Do you have 3.2 million dollars burning a hole in your pocket? If so, you can own one of the houses Louis D. Brandeis grew up in. Today’s Courier-Journal has a story about how the dermatologists who own the old Brandeis home on Broadway are looking to relocate to the east side of the city, so they are putting the historic building up for sale. It would be great if the University of Louisville would buy it, but I probably shouldn’t get my hopes up.
I have written about this house before, but it looks like I might have gotten some information wrong in the previous post. In it, I quoted a Courier-Journal article from 1939 that said the Brandeis family built the house in 1872. (The article also claimed that this was the same year that Adolph Brandeis started his grain business with William W. Crawford.) However, today’s Courier-Journal article states that the house was built in 1864. After looking into the discrepancy, I have decided that the 1864 date is probably the correct one. The earlier Courier-Journal article states that Brandeis and Crawford supposedly built houses next to each other the year they started their business. But they were a going concern long before 1872; they apparently made a lot of money selling supplies to the Union Army during the Civil War. Philippa Strum states the business was founded in 1855. Strum also gives the following chronology: “When Brandeis was four, his parents moved from their little house on Center Street … to a larger one on First Street, which they had remodeled. A few years later they moved again, this time to an impressive limestone-fronted house they had built on fashionable Broadway.” The 1864 date is a much better fit with this chronology than 1872 is. Also, 1872 is the year that Brandeis’ father disbanded his business, which seems like it would have been an awkward time to have had a new house built.
The difference in dates is significant because of the historical marker in front of the house on Broadway that proclaims it as “Brandeis’ Boyhood Home.” If the house had in fact been built in 1872, then Brandeis would only have lived in it for a matter of months. Shortly after disbanding his business, Adolph Brandeis took his family of a trip to Europe. Louis Brandeis would not return to Louisville until 1875, and then he would leave shortly thereafter for Harvard. Other than occasional short visits, Brandeis never lived in Louisville again. So if the house was built in 1864, then Brandeis would lived there for about 8 years, longer than in either of his two other Louisville homes, thus making it indeed his boyhood home.
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Louisville’s congressman John Yarmuth cites Brandeis in a tweet. Love it.
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It is a little known fact of John Marshall Harlan’s life that he was so hard up for money while he was on the Supreme Court that he had to take on a second job as law professor at what is now known as George Washington University, during the years of 1889 to 1910. It is unusual for a Supreme Court justice to take on such a task but it is not unprecedented. Harlan’s colleague David Josiah Brewer also taught at George Washington, and Clarence Thomas is currently co-teaching a seminar on constitutional law at the very same law school. Harlan taught many different courses, but his constitutional law course was possibly his most popular one, as one can well imagine.
The contents of the lectures of those courses (Harlan was not a believer in the Socratic method) would have been lost for all time if two students during the 1897-98 academic year hadn’t transcribed them all in shorthand. Many years later, one of the students presented Harlan’s grandson, John Marshall Harlan II, a typed copy of the lectures when he ascended onto the Supreme Court. From there, the transcripts eventually found their way in to the Library of Congress, where they sit with the rest of the library’s collection of Harlan papers. (Oh, if they had only found their to Louisville!)
The lectures have been cited numerous times in books and articles about Harlan, but they have never appeared in print until now. Long time Harlan scholar Josh Blackman, along with Brian Frye and Michael McCloskey have published an edited and footnoted copy of the transcriptions in George Washington University Law School’s online journal Arguendo. Even better, they have written an introduction of sorts titled “Justice John Marshall Harlan: Professor of Law” which was published in the July 2013 issue of The George Washington Law Review (also available online.) For more information about the article, you can read what I wrote about it a couple years ago.
The lectures are fun to read: not only do they give a good idea of Harlan’s views on the Constitution, but there are also occasional glimpses of Harlan’s personality that peek through. (My favorite is when he goes on about this great new invention he has just discovered called the telephone. It reminds me of what many law students must have gone through a hundred years later as their professors discovered what wonderful things they could do on the Internet.) However, I think most people interested in the lectures would be best served by reading the article. The lectures go on for 338 pages and the article does an excellent job telling you everything you need to know about them. I would say it’s essential reading for anyone who is interested in Harlan.
This does leave me with one question though: what is Carolina Academic Press going to do now? They have been promising an edition of the lectures by Davison Douglas for a couple years now. It was recently pushed back from this autumn to 2014. Are they still going to release it? And if so, will it sell enough copies to make it worthwhile?
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I am going to conclude this profile of Louis D. Brandeis’ uncle with excerpts of two more old Courier-Journal articles. Both of the stories here were related in the article I transcribed in part one, but I left them out because these two articles go into more detail. The article from my previous post described Dembitz’s love of swimming, but I would have thought that the incident from this August 8th, 1853 article would have turned him off of that activity forever.
Man Carried Over the Falls–Unparalleled Editorial Feat
We have to record an event in connection with our Falls–the much abused, yet turbulent, wild and not to be trifled with rapides la belle rivierre, which might have equaled the recent terrible disaster at the rival cascade of Niagara. We say might have equaled, for as it is, the denouement exhibits no loss of life, only a catalogue of hair breadth escapes by flood and field.
On Friday evening, about 11 o’clock, three gentlemen, (all Germans) Messrs. Louis Dembitz, late editor of the “Beobachter am Ohio,” in this city, Feamberger, and another whose name we have not ascertained, went in bathing at the upper wharf. They swam to Jeffersonville, and without resting started back. Dembitz, anxious to show off his agility in the water, pushed out boldly ahead of the others, and unconscious of the rapid current leading to the falls, was drawn in. In a few moments he found himself unable to cope with the strength of the hurrying waters. He was swiftly carried through the Indiana chute, and happening to come in contact with Ruble’s rock, he seized upon it and rested there for some time. But slipping off he went down through the eddy, whirlpool, round the tarn, and found himself exhausted in slack water a short distance above New Albany. There he crawled out, and in a state of perfect nudity, in puris naturalibus, walked up the plank road to Jeffersonville, where borrowing a pair of pants, shirt and cap, he came over on the first trip of the ferry. At the wharf he found a group of relatives and friends collected, bewailing his loss. His companions were taken up by a skiff, having halloed lustily for assistance.
We have yet to hear of an achievement by a knight of the scissors and quill, equal to that of our friend and contemporary, Dembitz. He may congratulate himself on having performed such an arduous and saved his life beside. Editors are hard to beat at anything. They cannot be drowned, but may be hanged.
I should point out that no one goes swimming in the Ohio River now. Whether this is because people are much less athletic these days or because the river is that much more polluted I cannot say. The next bit is an extract from an article from August 11, 1918, some 7 years after Dembitz’s death. It is one of a series of articles titled “Memoirs of a Court Reporter,” which were a series of anecdotes about members of the Louisville bar by Clarence E. Walker. (Mr. Walker was the man who played the record backwards in Part One of this profile.) This anecdote gives a good idea of the breadth of Dembitz’s knowledge and his ability to retain information.
It was in the early eighties that I first ran across Mr. Dembitz. Theodore F. Bristol, the valedictorian of the class of 1878 at the High School, was reporting for one of the evening papers. Dropping in on me one morning where I was wrestling with Kent or Blackstone he said to me, “I wish I could find out something about El Mahdi.”
“Who is El Mahdi?” I asked.
“He is a Mohammedan who is kicking up a pretty good sized row over around Arabia,” said The, “and no one seems to know anything about him.”
I had been introduced to Mr. Dembitz a few days before and the person who introduced me had told me that he knew everything. Instantly I thought of him.
“Come on, The,” I said. “I will take you to a man who they say knows everything, and he may tell us something.”
We started, and if there ever was a man from Missouri The was the man. I was sure Mr. Dembitz would know something, but The was not. When we got there and the introduction was over I said to Mr. Dembitz:
“Mr. Bristol is a reporter and wants to find out something about El Mahdi. Can you help him?”
“Sure,” said Mr. Dembitz, and down he sat and commenced writing. He wrote a very small, compact hand, and it took him fully a quarter of an hour to finish the first page, and both of us were fretting, thinking he was writing something for himself after which he would give us the information we were after. He handed us the completed first page and continued writing. He gave us the parents of El Mahdi, the place of his nativity, how many brothers and sisters he had and the order in which they came. His education was also set forth at length, with the things for which he manifested a liking and those to which he did not take kindly. In short, it was apparently a full and complete but compact biography. We thanked Mr. Dembitz and left and The was almost afraid to use the matter. I insisted that Mr. Dembitz would not give him anything but what was accurate and The published it.
The press generally looked askance at The’s article. One prominent Eastern paper published it in full with the comment that a small afternoon paper in Louisville (and the afternoon papers were small affairs then) had published this article, and if true it was interesting, but the paper published it without any guaranty as to its correctness.
As El Mahdi loomed larger and larger, first one portion of the article was found to be accurate and then another, until it was finally recognized that the whole was a wonderfully accurate account of the life of the False Prophet. Then considerable interest was manifested as to how the information was procured, and The and I again went to Mr. Dembitz to get an answer for the inquiry, and Mr. Dembitz said: “In order to keep up my Arabic, I take two copies of an Arabian paper, and just before you boys came in with your inquiry I had read an account of El Mahdi’s life in that Arabian paper.”
I have one more Dembitz story to relate. This one came from Charles Tachau, who is the grandson of Louis Brandeis’s brother, Alfred. This comes from an interview I did with him a couple years ago about his family.
He was famous in our family for being very absent minded. He was supposed to have taken one of his sons out to teach him to swim. He threw him in the water and walked away and left him … Another thing I remember is that he was very active in politics, I guess as a Republican and an abolitionist, although this would have been a little later. The way I remember the story is he was walking down the street and a lady dropped a package. He stooped to pick it up for her and it was wrapped in the wrong newspaper. He said, “You read this damnable newspaper!?” and threw the package down.
Mr. Tachau didn’t have any idea which newspaper it was. I hope it wasn’t the Courier-Journal…
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